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U.S. Oath of Allegiance

From a purely technical interpretation of the law does the oath cover laws that are unconstitutional?

To whom does the obediance allegiance lie with those who took the oath? The law? The constitution? Their direct superior? Their superior's superior?

Help me out please. The U.S. Oath of Allegiance is a lot more vague than I used to think.

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  • I'm not sure why immigration and military have been tagged, does the Oath make such a distinction?
    – Rick
    Mar 13, 2021 at 15:48
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    I tagged those groups because I think they are the two largest groups of people that take that oath. I could be wrong. It seemed correct to me. Plus you might get different perspectives when you look at it from those two separate angles.
    – user875234
    Mar 13, 2021 at 16:00
  • @RockApe the oath linked in the question is the oath that is part of the naturalization ceremony. The military oath is somewhat different.
    – phoog
    Mar 14, 2021 at 3:19
  • A law that is unconstitutional is void. The law can neither forbid what the Constitution allows nor allow what the Constitution forbids. The Constitution is the supreme law, everything else either flows from it or is subservient to it. In reality it’s not always clear as to what the constitution says on a particular subject, but if a law was passed with 100% support in both Houses, that said that the President had to be Jewish, it would clearly be unconstitutional and everyone would know it (which is one reason why such a law would never be passed)
    – jmoreno
    Mar 15, 2021 at 2:48
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    For me it would be of more interest, if having to take the Oath is effectively or at least in the literal sense violating the universal human right to conscientious objection, as - at least as your Wikipedia source says - the portion regarding taking up arms if required by law seemingly only can be omitted if some religious belief prohibits it, which is more or less the opposite of (an inheritently internal) conscience - it is an (believed) external force that governs behaviour...
    – I'm with Monica
    Mar 15, 2021 at 7:22

4 Answers 4

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Technically, there is no such thing as an unconstitutional law. There are laws which have been passed, but whose unconstitutionality has not been discovered yet. But once a law is legally deemed to be unconstitutional, it stops being a law.

The constitution is a recipe for running the government. If Congress enacts legislature which it has no authority to enact, the courts have the authority to discover this and reveal it in an opinion.

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    Which, of course, requires someone to bring to the court's attention the potential unconstitutionality. It's not like the judges just sit there watching Congress (especially considering their current caseload!)
    – corsiKa
    Mar 15, 2021 at 5:14
  • By definition, a statute which is contrary to the Supreme Law of the Land isn't a law, regardless of anything that courts may or may not have said about it.
    – supercat
    Mar 15, 2021 at 20:37
  • Not quite so easy, because laws can be unconstitutional as applied, and because legal determinations on constitutionality can be decided inconsistently in cases involving different parties. A lawsuit holding a federal statute unconstitutional in a case between the Seattle police and my sister-in-law in WA state or the 9th Circuit federal appeals court is not binding on me vis-a-vis the Denver police.
    – ohwilleke
    Mar 16, 2021 at 3:03
  • @ohwilleke trying to explain this seems tautological. Saying that a law is not applicable to a situation seems equivalent to saying that in such a situation this law need not be treated as a law. And defining a statement in terms of an equivalent statement is a tautology.
    – grovkin
    Mar 16, 2021 at 9:17
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There is an Oath of Enlistment for the military where the enlistee vows to

support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice

"The laws" are not mentioned.

The thing known as the Oath of Allegiance is spelled out in 8 CFR 337.1, and currently states:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

It is administered as part of the naturalization process. Para (c) states the presumed obligations of that oath:

A petitioner or applicant for naturalization shall, before being naturalized, establish that it is his or her intention, in good faith, to assume and discharge the obligations of the oath of allegiance, and that his or her attitude toward the Constitution and laws of the United States renders him or her capable of fulfilling the obligations of such oath.

A finding of unconstitutionality by the Supreme Court results in a certain level of legal chaos. If a court "discovers" that a law is unconstitutional, that means that for such-and-such reason, the law conflicts with the Constitution, we know that the Constitution is the supreme law of the land, and therefore the purported law (or portional thereof) is not and was not a law.

However, recall that death penalty laws were (in their form at the time) declared unconstitutional in 1972, by Furman v. Georgia. Thousands of people had been previously executed under various state laws: the execution was legal at the time and the executioner(s) were not subject to prosecution for murder because murder statutes refer to unlawful killing whereas a court-mandated execution is a lawful killing. Furman did not then expose thousands of penal-system agents to criminal liability for acts which were "unknowingly illegal".

A person will not be penalized for failing to adhere to the Oath of Allegiance as part of the naturalization process: but they may be penalized for performing a generally-forbidden act. The Oath of Allegiance isn't "enforceable" although it is mandatory to take the oath, so there is no way to tell how the courts would interpret this issue.

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    "no way to tell how the courts would interpret this issue": it seems that we can say instead that the courts never would interpret it, because it would never be a deciding factor in an actual case or controversy.
    – phoog
    Mar 14, 2021 at 3:07
  • @phoog: You'd have to make a law with a penalty of de-naturalization, and since that can't be applied to those born a citizen it gets, well, dicey whether that law is itself constitutional.
    – Joshua
    Mar 14, 2021 at 21:51
  • @Joshua there are laws that can result in denaturalization, but they don't have anything to do with the oath.
    – phoog
    Mar 14, 2021 at 22:26
  • "The Oath of Allegiance isn't "enforceable" although it is mandatory to take the oath," So, what happens if they take the oath to become an American citizen, then fail to properly repudiate their previous citizenships?
    – nick012000
    Mar 15, 2021 at 5:01
  • I wonder if someone who killed an executioner in self-defence (or defence of another) just prior to the act becoming unconstitutional would be liable. Probably, the USA biased towards leviathan government.
    – Yakk
    Mar 15, 2021 at 13:24
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From a purely technical interpretation of the law does the oath cover laws that are unconstitutional?

Of course not. Unconstitutional laws are effectively null and void. The oath covers the constitution and laws collectively, not individually. Supporting and defending them collectively includes supporting and defending court rulings, including those rulings that invalidate unconstitutional laws.

To whom does the allegiance lie with those who took the oath?

To the United States, or perhaps to its constitution and laws.

Their direct superior? Their superior's superior?

Not everyone has a superior, and in most cases of those who do, the relationship has nothing to do with the constitution or laws.

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  • Concerning allegiance, the linked Wikipedia article in the question lists "five principles", the first of which is "allegiance to the United States Constitution." 8 U.S. Code § 1448(a) says "(1) to support the Constitution of the United States."
    – Rick Smith
    Mar 14, 2021 at 14:55
  • @RickSmith but the constitution isn't a proper recipient of allegiance according to the dictionaries I consulted, which define it as loyalty to a "person, group, or cause," or to a "cause, nation, or ruler." And 8 USC 1458(a) does not contain the phrase "allegiance to the United States constitution." It says "allegiance to the same," where the antecedent of "the same" is ambiguous, because it could be "the constitution and laws" or it could be "the United States."
    – phoog
    Mar 14, 2021 at 15:48
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    @Barmar "Oaths of office are certainly different -- presumably you can lose the position if you violate it." The oaths of office are almost the same in content, and often identical, and you generally can't lose the position just for violating it. Oaths of office are something of a fig leaf to justify putting someone in a position with little or no immediate accountability.
    – ohwilleke
    Mar 17, 2021 at 23:04
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    @phoog "can't non-citizen nationals commit treason or sedition?" Fair and correct. Kind of quirky and rarely comes up unless you live in Guam or something, so I didn't consider that edge case.
    – ohwilleke
    Mar 17, 2021 at 23:05
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    @Barmar It is almost necessarily true that somebody has to be in charge of carrying out an oath without someone second guessing them - the highest judges, and elected officials. An oath bases system of organization is a feudal holdover. Everyone who made an oath owed another oath to someone higher up, until you got to the king who was charged with looking out for himself but cared because he owned everyone and everything. In a democracy, there is a tension between respecting voters wishes and respecting the rule of law.
    – ohwilleke
    Mar 18, 2021 at 18:41
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To whom does the obediance lie with those who took the oath?

If by obedience, you mean allegiance then it is the Constitution and the law...

I hereby declare, on oath... that I will support and defend the Constitution and laws of the United States of America ... that I will bear true faith and allegiance to the same ...

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  • Yeah but my point is what if a law is unconstitutional? Doesn't that ever happen? Are all laws constitutional? What if they are constitutional in a subjective sense but when the constitution is taken at face value they are unconstitutional?
    – user875234
    Mar 13, 2021 at 15:49
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    Maybe that's another question: Once a law has been found to be unconstitutional, is it still law?
    – Rick
    Mar 13, 2021 at 16:01
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    My understanding is that an unconstitutional law is null and void (i.e. not a law at all), but I'll wait for a constitutional law scholar to come by to confirm.
    – Robert Columbia
    Mar 13, 2021 at 16:36
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    It's not entirely clear that "the same" refers to "constitution and laws": it's more likely that it refers to "United States of America." As written, it's ambiguous.
    – phoog
    Mar 14, 2021 at 3:24

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